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January 6, 2010

Effective NPR discussion of plea bargaining realities

This afternoon's NPR program "Talk of the Nation" included this lengthy segment on plea bargaining under the title "Plea Bargains: Necessary Tool, Or Cop-Out?". Here is set up:

Most criminal convictions are the result of plea bargaining, a process of negotiations between prosecutors and defense attorneys. Critics argue that criminal defendants can get off too lightly, and defendants say they're often pressured into accepting deals.

In addition to effective presentations by the two law prof guests, diverse plea bargaining stories told by the callers to the show make the segment especially worth a listen.

Comments

This piece says "less than 10 percent of defendants ever go to trial," but in Texas state courts it's less than 2% for felonies, around 1% for misdemeanors. Maybe we're outliers, but I'd be surprised if it's remotely close to 10% anywhere.

This means, even the cult criminal does not see the trial as a valid tool for the overwhelming majority of cases. The "trial" has already been held during the police investigation. The two cult criminals negotiating about an accused over lunch are doing the sentencing phase.

Why not admit it, and formalize the real trial process for greater accuracy?

The trial itself violates the Establishment Clause. Disputation was a method at arriving at a correct answer in Scholasticism, a church based philosophy. It has no validation. It does not even have reliability statistics measuring repeatability of outcomes.

To get a Phd in psych you had to go through a defense of your dissertation. The defense of a dissertation is a form of Disputation. Following your logic that means Phd's have no validation because there are no reliability statistics measuring repeatability of outcomes. If that is the case are not all members of the academy rent seekers. Could it be that all institutions are cults.

Posted by: k | Jan 7, 2010 10:49:11 AM

Of couse none of this means a thing for plea bargains in sex offence cases since those have been illegally changed for years now.

NO ONE charged with a sex offense could plea bargain. Since it's not gonna be honored anyway. Make the state spend ever dime you can...go to trial...nothign you get at trial will compare with the screwing you get via a plea bargain. The only exception would be sexoffence/death cases that can bring the death penalty.

Posted by: rodsmith3510 | Jan 7, 2010 12:01:19 PM

K: The Supremacy is a lady who attended a superb high school. She took Advanced Placement courses, similar to those in freshman year of college. All her information comes from there. She has read a lot of law.

I will let you judge for yourself whether law education is education or cult indoctrination. Apply your personal experience to the elements in this table:

The other elements of cult indoctrination are the supernatural doctrines of the common law, mind reading, future forecasting, detecting the truth by using the gut feelings of 12 strangers, a paragon of prudence that really is Jesus Christ (reasonable person), the idea tat the adversarial process yields reliable answers.

You do get acculturated into the attitudes and methodologies in every professional school. I agree. Indoctrination is without warning to or consent from the student in law school. It is a massive intentional tort.

The Establishement Clause applies to government entities. A private school may use witch rituals to induct new PhD's, if it wishes. Church based jurisprudence is unlawful in our secular nation. Imagine a Sharia based jurisprudence. You would scream. I have read their Hornbook. Over 90% is pretty good. Only 10% is goofy. I recommend this.

http://www.masud.co.uk/ISLAM/nuh/reliance.htm

It's sentencing provisions are a strong factor in the low crime rate, all over the Islamic world, even in Cairo, despite their poverty and their crowding stress.

Rod Smith: That's a nice theory - but even in "sex cases" people plea to lesser charges, charges w/o mandatory punishment, agree to stipulated facts that substantially reduce their criminal exposure - this coupled with the "carrot" of cooperation benefits, expectance of responsibility, and various safety valves/shock probation options that are NOT available when you set a case for trial, make pleas attractive in the 90-95% of all cases that end in them - nasty sex or no.

Posted by: Ferris Bueller | Jan 7, 2010 2:19:27 PM

My readings suggest 3 to 4 percent of federal cases and less than 25 percent of state cases progress to trials...which is another way of saying the strength of government cases is seldom tested by judges or juries.

Given the government's overwhelming negotiating advantages (bottomless pockets, flypaper statutes that only lawyers can comprehend, the ability to bribe supportive witnesses, harsh sentencing guidelines and mandatory minimums and a prevailing if flawed jury-pool notion that lawmen only target the guilty), plea-deal justice also raises the specter of citizens being bluffed and coerced into prison on evidence that wouldn't hold up in a system that truly valued jury trials.

Certainly I've met a number of non-violent first offenders who signed deals not because they believed they were guilty as charged but as the only sane alternative to the likely prospect of rotting in prison and bankrupting their families in long-shot attempts to beat the government in court.

Old-time Cops and prosecutors never wielded rubber hoses or thick phone books more deftly or effectively than their modern counterparts use draconian mandatory minimums and an array of vague, sweeping statutes to make even innocent and wrongly accused citizens eager to confess.

Posted by: John K | Jan 7, 2010 2:25:29 PM

Rod And John K might want to come down from the ivory tower to test their "theories" about why people - here's a hint from someone who represented folks in the trenches: they did it and the state has the goods.

Every once and a while Officer Friendly makes an "uh-oh" with the search (quickly fixed by the appellate court), ADA Brimstone occasionally "forgets" his Brady and Giglio obligations (harmless error, 'natch), and Judge O'Blowhard sometimes confuses the rules of evidence (not abuse of discretion) - but mostly, they goddamn did it, they talked about it endlessly to law enforcement, they produced mountains of evidence, and all you can do is make a imitation silk purse out of a sow's ear.

After a few years the recurrent "everybody ought to just go to trial" stuff spouted from people who have never had to stand next to someone sentenced to many decades in prison after they bravely went to trial gets a little boring.

Posted by: Ferris Bueller | Jan 7, 2010 2:56:14 PM

John K --

Ferris nails it. The reason defendants plead guilty is easy to figure out, and courtroom lawyers know it well: They did it, the government can prove they did it, and their lawyer knows it and wants the best outcome possible, which means a bargain rather than a trial.

There are occasional bad apples, of course. No profession in the world is entirely pure. Every now and again an innocent person gets charged or even convicted. But the notion that cops and prosecutors spend their time picking random people off the street to file bogus charges JUST FOR THE SHEAR MALEVOLENCE OF IT is so preposterous I doubt even you believe it.

Which calls to mind some unfinished business.

A few days ago, you wrote that I had "a terrier-like grip on the notion there's no such thing as an innocent or wrongly accused defendant."

I asked you to quote the post in which I state or imply that there is no such thing as an innocent or wrongly accused defendant.

You didn't answer. So I will ask again.

No talking points, no dodges, no sermons, no changing the subject. Just quote the post.

Posted by: Bill Otis | Jan 7, 2010 3:20:48 PM

Ferris: the rate of innocence on death row is unknown. However for every 5 executions a year, there is one exoneration. Assume the rate of innocence on death row is 20%. Is it going to be lower or higher in plea bargained cases?

The criminal law is in utter failure in every direction. It allows 90% plus of crimes to go unanswered. When it gets a hold of the person, it crushes the wrong person much of the time.

Imagine a car that did not start 90% of the time. When it did start, it lunged forward and caused a crash. Would tort liability help or hinder?

I would like to see all self-dealt, horrible immunities end by an Amendment. The prosecutor should be sued for failure to prosecute, and for prosecuting the wrong person. The judge should have full liability for punishing innocent people. These are the lowest people in our society, lower than bums. Only convicted felons, and journalists are lower, and there is plenty of doubt about the felon's being lower.

Well of COURSE there is such a thing as an innocent or wrongly accused defendant.

A Republican charged with anything.

Glad I could help, Bill.

Posted by: Gaius Gracchus | Jan 7, 2010 4:02:29 PM

Galus --

I don't know if the Duke lacorsse players falsely charged with rape by a Democratic prosecutor seeking to jumpstart his flagging campaign were Republican, but I do know the charges were propped up by the Duke administration in a veritable burlesque of political correctness. This went on until the Attorney General of North Carolina put a stop to it, finding that the whole thing was concocted by a drunken stripper and that the Democratic prosecutor knew it, resulting (too late) in his disbarment.

As I say, I don't know whether the lacrosse players were Republican. Indeed I don't know that they had political views at all. I do know their own faculty was willing to serve them up on the altar of radical feminism and political correctness in a rush to (false) judgment.

I'd say the whole thing was a disgrace, wouldn't you?

Posted by: Bill Otis | Jan 7, 2010 6:06:36 PM

Re: the Duke lacrosse players case--

Isn't it ironic that one of the most egregious examples of an innocent/wrongly accused defendant(s) has the heavy-handed thumbprints of political correctness all over it.

I can never look at Duke University in the same way after that debacle.

Posted by: mjs | Jan 7, 2010 7:45:24 PM

mjs --

Instead of learning a lesson from the disgrace it brought upon itself, Duke recently adopted a dating "policy" that all but assumes that any advance from the male is rape. I know that sounds like it must be an exaggeration, but see for yourself: http://www.nationaljournal.com/njmagazine/or_20091219_1261.php

Let me take this opportunity to apologize again for my out-of-line Mussolini remark. I tried to send you a personal apology, but the e-mail address I have has lapsed.

Posted by: Bill Otis | Jan 7, 2010 11:17:53 PM

"Rod And John K might want to come down from the ivory tower to test their "theories" about why people - here's a hint from someone who represented folks in the trenches: they did it and the state has the goods.

Every once and a while Officer Friendly makes an "uh-oh" with the search (quickly fixed by the appellate court), ADA Brimstone occasionally "forgets" his Brady and Giglio obligations (harmless error, 'natch), and Judge O'Blowhard sometimes confuses the rules of evidence (not abuse of discretion) - but mostly, they goddamn did it, they talked about it endlessly to law enforcement, they produced mountains of evidence, and all you can do is make a imitation silk purse out of a sow's ear.

After a few years the recurrent "everybody ought to just go to trial" stuff spouted from people who have never had to stand next to someone sentenced to many decades in prison after they bravely went to trial gets a little boring."

I agree it's also very boring to watch 1,000's of plea bargains changed year after year after year after year without benifit of a hearing or even a NEW CRIME.

i also find it CRIMINAL. As well as a treasonous violation of our CONSTITUTION.

Posted by: rodsmith3510 | Jan 8, 2010 12:17:14 AM

as for this!

"Rod Smith: That's a nice theory - but even in "sex cases" people plea to lesser charges, charges w/o mandatory punishment, agree to stipulated facts that substantially reduce their criminal exposure - this coupled with the "carrot" of cooperation benefits, expectance of responsibility, and various safety valves/shock probation options that are NOT available when you set a case for trial, make pleas attractive in the 90-95% of all cases that end in them - nasty sex or no."

I have no problem with them taking a plea bargain that is going to be HONORED by the state...But the last decade or so covering sex offenders cases that hasn't proven to be true. The state's record of honoring THOSE plea bargain is even worse then the govts record of honoring indian treaties!

What i said was that since the state has proven they WON'T honor them..why bother. take it to trial in every case except where it's a possible life or death sentace. they have nothing to lose.

Posted by: rodsmith3510 | Jan 8, 2010 12:20:06 AM

Bill, the terrier-grip remark was an observation, a synthesis of your positions, not a direct quotation.

But if I had to pick a quote of yours to support the observation I couldn't do much better than this one, taken from your comments in this thread:

"The reason defendants plead guilty is easy to figure out, and courtroom lawyers know it well: They did it, the government can prove they did it, and their lawyer knows it and wants the best outcome possible, which means a bargain rather than a trial."

Now if we're talking about garden variety crimes (murder, robbery, rape, etc.) I agree state and local authorities get it right far more often than not.

But the feds are just scary. Congress, with its unrelenting overcriminalization efforts, has created a monster.

Posted by: John K | Jan 8, 2010 2:11:25 AM

John K --

The problem with your statement about my supposed beliefs is that it was absolute and categorical: that I think "THERE'S NO SUCH THING as an innocent or wrongly accused defendant. [emphasis added]"

It is true, as you point out, that I think the great majority of defendants are guilty of the charges made against them. (Evidently so do their lawyers, which is one important reason the lawyers tend to encourage pleading). But that is a far cry from believing that "there is no such thing" as an innocent or wrongly accused defendant. As I have made clear on this very thread, I thought the Duke rape defendants were innocent, which they were. I don't know if the Blackwater defendants are innocent, but there is a non-trivial chance they are, and one way or another there's no question they were "wrongly accused," since, as Judge Urbina correctly found, the government deceived them by violating promised immunity. I also have doubts about the Ted Stevens case, although I don't know that one as well. I think he's very likely guilty, but, again, the shenanigans in the prosecution so undermine it as to make me suspect that he too was "wrongly accused."

A person who thinks there are absolutely no errors on the prosecution side is crazy. And if that's what I thought -- as you said it was -- I'd be crazy. But it's not what I think, and nothing I have written could have led you to think it was.

I think they're mostly guilty, you bet. That's because they are.

As to federal overcriminalization: There are quite a few conservatives and libertarians who agree with you. When I was an AUSA, I viewed the question as above my pay grade. Congress decides what federal law shall be; Assistant United States Attorneys do not. An AUSA is obliged to follow the law as written, not as he would have preferred it be written.

Posted by: Bill Otis | Jan 8, 2010 10:01:07 AM

I'll bite, John K, what federal offenses do you think are "overcriminalized"?

Drugs? I'll agree with you that the crack/powder ratio is unreasonable disparity - but that's a sentencing issue. You are talking about charging decisions that lead to pleas... so what EXACTLY are you talking about?

Immigration? The feds have an obligation to prosecute (and then remove) reentry defendants who pose a danger to the public. According to the US Sentencing Commission fully 87% of reentry defendants in 2008 have a significant criminal history that includes a felony (in the US, no less). At a minimum, the government needs to protect the public from foreign CRIMINALS who, BTW, are usually only facing a criminal charge because they've been picked up by the authorities committing yet another crime. If I were a US Atty I'd not bother to prosecute the reentry cases where the defendant did not have a felony criminal history - so I'd agree that about 13% of the reenetry cases might be unnecessary - but note that perhaps the circumstances of some these cases - uncharged or dismissed conduct - caused the US Atty to act - who knows.

Guns? Do we even need to discuss the necessity of prosecuting career criminals and armed criminals? Really?

Fraud? Do you really believe that the Feds are prosecuting TOO much fraud? I've yet to see a single banker or trader indicted for fraud related to the derivative market scandal. Do we really believe there were no misrepresentations as to risk delivered to regulators, shareholders, or counter parties in that scenario?

Those three topics, guns, drugs, fraud, and immigration make up fully 90% of the federal docket, with some environmental, import/export, antitrust sprinkled in.

Now, I ask again, back away from the well-worn talking points about "overcriminalization" you've heard on NPR or at some lecture, and tell me, specifically, what you think the feds are doing (at scale) that they should not?

Posted by: Ferris Bueller | Jan 8, 2010 11:01:53 AM

As a newspaper editor I was keenly aware of what critics of the press were saying about me and my kind.

So I'm somewhat puzzled by Bill's and Bueller's what-the-heck-do-you-mean? reaction to criticisms that these days are anything but extreme or outlandish.

I'd be happy to provide an extensive reading list of books and articles by respected writers who share the view Congress went bonkers in the post-Nixon era in its quest to demagogue and exploit the crime issue.

However, a good starting point in response to Bueller's challenge is this 2003 piece by Paul Rosenweig for the Heritage Foundation, "The Over-Criminalization of Social and Economic Conduct":

http://www.heritage.org/Research/LegalIssues/lm7.cfm

And at some point I expect Rosenzweig's long-awaited book, "How Crazy Laws, Rogue Prosecutors, and Lazy Judges Threaten our Liberty" will be published and join at least a dozen other thoughtful books making essentially the same point: the overheated compulsion to criminalize and severely punish all manner of conduct has simply gotten out of hand.

Posted by: John K | Jan 8, 2010 2:14:24 PM

Ferris --

I agree that "federal overcriminalization" is a general phrase frequently tossed around but seldom defined. One better defined area of complaint conerns the federal "honest services" statute, 18 USC 1346, which was the subject of the December 8 Supreme Court arguments in Black and Weyhrauch. It will get an even closer look in Skilling, to be argued March 2.

The complaint about 1346 is that it casts an extremely broad net, as was made clear by Black's lawyer, my one-time DOJ colleague Miguel Estrada. Personally, I think it's an awfully complicated issue. I was asked to go through it on a Federalist Society podcast, which I understand will be put up on their website soon.

Very few people would know as precisely as you the subject matter composition of federal criminal cases. Were you ever at DOJ?

Posted by: Bill Otis | Jan 8, 2010 3:40:39 PM

Bill: Nope. Just a red-mouthed defense lawyer. I'm not sure what I think about the honest services debate. Is it less of a crime when there is not direct self-dealing but the fraudster moves ahead out of ego, for the gamble, or just 'cause? I dunno. It would seem in a lot of these cases the Gov't ought to be able to make a reg'lar ol' wire/mail fraud if they can show that the defendant would gain the benefit of keeping his/her job, rising up the ladder, or potentially making a bigger bonus or stock option windfall by diddlin' the books and whatnot.

Posted by: Ferris Bueller | Jan 8, 2010 6:18:40 PM

But of course, Bueller. If the honest-services statute is under fire for its a broad net turn for the moment to RICO statutes.

They're every bit as vague and sweeping. But over time we've grown accustomed to using laws contrived to knee-cap John Gotti and Pablo Escobar against less-resourceful, ordinary citizens.

The important thing is to criminalize more conduct and get more people in prison.

Your instincts are good, Bueller. You might not have worked in the Justice Department, but I think you would have felt at home there.

Posted by: John K | Jan 9, 2010 6:10:47 AM

Ferris: Defense lawyers owe their jobs to overcriminalization and to the prosecutor, not to the client. If you ask a defense lawyer to counter-attack the prosecutor as a person, or the division, they refuse. Nor will they ever counter-attack a judge however damaging to the client is the judge's bias or misconduct. One needs a second lawyer, a legal malpractice lawyer, to terrorize the defense lawyer to carry out his duty to the client's interests.

Supremacy Clod: True Believers may make the defendant feel good about themselves (and surely make the True Believer feel great about themselves), but if the ultimate goal is to reduce or eliminate the number of days one spends in custody True Believers are often ineffective. I'll give you an institutional example. In Washington DC the local Public Defender, after years of the type of confrontational behavior you suggest, now finds that they face a closed-file policy with the US Atty's Office and receive Jenks Act materials (discovery) the day before trial begins. Because they have taken the "no quarter" position the US Atty feels justified in doing likewise. Contrast this to most other jurisdictions, including the much maligned Texas, where it is common to have an open file and, often a more established (and early) discovery process because the parties simply get along.

Who is more effective? The "rent seeking" advocate who effectively works with the system he/she is given, or the True Believer who gets handed 500 pages of discovery 12 hours before trial begins? DC Defenders are a talented bunch, and they are blessed with an very defendant-friendly jury pool, but only a fool would suggest that these tactics serve the individual defendant.

You may deplore the "club", but you are talking about structural issues that make not a whit of difference to the individual facing the might of the government. A True Believer might visit you in jail and commiserate about how unfair it all is, an advocate keeps you out.

Posted by: Ferris Bueller | Jan 9, 2010 10:12:23 AM

Ferris --

I encouraged open file discovery no matter how much of a jerk the defense lawyer was, or how obdurate or insulting. There were several reasons for this: First, I never looked on it as a game and never approved of treating pre-trial behavior as moves in a game. I expected (however foolishly) everyone in the system to be forthcoming, and it began with the USAO.

Second, I wanted it known among the judges that our Office was not into hiding the ball or anything else.

Third and relatedly, the more discovery you provide, the less chance there is that the defense will raise, much less win, a Brady/Giglio motion.

And finally (and I must confess my favorite): The more the defense saw of the government's case, the more depressed it became. There is an illusion around here, apparently held by John K and others, that the government's file contains all these secrets that will free the defendant.

What a joke! What it actually contains is the mountain of evidence under which the defendant is about to be buried. Although I never encouraged open file discovery as a tool to bring about plea bargains (I actually agree that plea bargains are used too frequently), that was typically its result.

Posted by: Bill Otis | Jan 9, 2010 11:02:10 AM

That's the kicker. How in the hell can a public defender in DC properly evaluate whether they should try a case or not if they haven't seen the file? They can have the best investigator in the world and an honest client with perfect recall of the facts (both traits are unlikely) and STILL not be able to honestly evaluate the options for their client.

It makes certain people feel good about themselves to be the "warrior" in these situations, but it makes for bad representation in most cases, IMHO.

Posted by: Ferris Bueller | Jan 9, 2010 3:48:27 PM

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